ABA Task Force Wants to Help Disrupt School-to-Prison Pipeline

ByJason P. Nance and Sarah E. Redfield |February 12, 2016

This school-to-prison pipeline is one of our nation’s most pressing challenges, that all of us must help reverse.

A student’s involvement in the justice system often results from a combination of factors such as low academic achievement; low academic expectations; poor relationships with other members of the school community; poor school climates; low engagement; incorrect referral or categorization in special education; and overly harsh and exclusionary discipline such as suspension, expulsion, referral to law enforcement, arrest, or treatment in the juvenile justice system.

The consequences of involving youth in the justice system are severe. Several empirical studies demonstrate that involvement leads to reinforcement of violent attitudes and behaviors; more limited employment, military, housing and higher educational opportunities; poorer academic performance; an increased likelihood of not graduating from high school, and increased future involvement in the justice system.

Not only do these outcomes ruin the lives of youth and their families, but they are also bad for our nation. States and localities spend millions of dollars each year to arrest, prosecute, convict and detain youth — money that could be used to improve educational systems and provide support for struggling families.

The long-term costs of confining youth run into the billions of dollars per year when one takes into account increased costs associated with recidivism, lost future earnings, lost tax revenue, and increased Medicaid and Medicare spending. Some have called increasing the high school graduation rate the nation’s most promising economic stimulus.

The most alarming aspect of these problems is that not all student groups are equally affected by these trends. The disproportionality between a group’s representation in the population and its representation in the negative consequences associated with the school-to-prison pipeline has long been known and is becoming more pronounced.

National, state and local data all show the same disparate outcomes: Students of color, students with disabilities and LGBTQ students most often are affected by these policies and practices such that they disproportionately drop out or are pushed out of school and become involved in the criminal justice system.

For example, data repeatedly confirm that students of color disproportionately achieve at lower levels academically; suffer from lower academic expectations; are retained in grade; are subject to more frequent and harsher school discipline; are placed in restrictive educational environments; are suspended, expelled or referred to law enforcement; feel threatened at school, and fail to graduate. Students with disabilities and LGTBQ students also suffer from disproportionate negative treatment and are more likely to be victimized. Further, where a student’s identity intersects with more than one of these groups, that student is exceptionally likely to be poorly treated.

We know that there must be a better, more responsible way to treat our youth that will secure a better future for them and our nation. In 2014, the American Bar Association’s (ABA) Coalition on Racial Ethnic Justice (COREJ) turned its attention to how the ABA might play a role in reversing these negative trends.

Joined by the ABA Pipeline Council and the ABA’s Criminal Justice Section, COREJ sponsored a series of town hall meetings across the country to investigate the issues surrounding the pipeline. The focus of these meetings was to explore these issues as they affected local communities and to gather testimony on solutions, with a particular focus on interventions where the legal community could be most effective in interrupting and reversing the pipeline.

Another critical focus of the meetings was to draw attention to the role that implicit bias plays in producing disparities with respect to students of color, LGBTQ students and students with disabilities. While there are several factors that may contribute to these disparities, if we accept as true that most educators and juvenile justice decision-makers act in good faith when exercising their discretion, then a possible cause of these disparities is decision-makers’ implicit biases.

Implicit social cognition science, on which implicit bias theory rests, posits that mental processes outside of conscious awareness and volitional control affect our feelings, perceptions, actions, decision-making and behavior. Everyone is affected by implicit biases, and often implicit biases are dissociated from values that a person consciously believes or endorses. Sophisticated measuring tools such as the Implicit Association Test demonstrate that most people have high implicit biases against persons of color, the disabled and members of the LGBTQ community.

The school-to-prison pipeline is a complex problem with no easy solutions. At their core, solutions should focus on ways to:

Improve academic achievement and increase the likelihood that students will remain in school, graduate and prepare to become positive, contributing members of our society

Decrease the number of suspensions, expulsions and referrals to law enforcement

Decrease disparities among students of color, disabled students and LGBTQ students relating to discipline and academic achievement.

There are affirmative steps that the American Bar Association is well positioned to take to help reverse these negative trends. All the ABA Joint Task Force on Reversing the School to Prison Pipeline’s recommendations can be found in its Preliminary Report, but we list some of those recommendations here:

Support legal representation for students at point of exclusion from school

Support ongoing convenings where educators, school resource officers, law enforcement and juvenile justice decision-makers join to develop strategies to reverse these trends

Develop training modules for training of school resource officers and police dealing with youth to avoid involving youth in the justice system

Develop training modules on implicit bias and debiasing for decisionmakers

Encourage youth mentoring initiatives

Remove zero-tolerance policies from schools

Support legislation eliminating criminalizing student misbehavior that does not endanger others

Support legislation eliminating the use of suspensions, expulsions and referrals to law enforcement for lower-level offenses

Provide model policy and support school policy and agreements that clarify the distinction between educator discipline and law enforcement discipline

Identify funding and provide safe harbor for participants in evaluative research on implicit bias and debiasing training

Provide support for continued and more detailed data-reporting mechanisms relating to school discipline and juvenile detention and disproportionality.

These recommendations are still in their preliminary stages. We welcome feedback on the specific recommendations and further information on ongoing work to develop strong initiatives for dismantling the pipeline and creating better learning environments for all children everywhere.

Jason P. Nance, J.D., Ph.D., is the reporter for the ABA’s Joint Task Force on Reversing the School-to-Prison Pipeline, and he and Professor Redfield are co-authors of the ABA’s report on this subject. He is an associate professor of law at the University of Florida Levin College of Law. A former public school teacher, he is the author of numerous articles on education law and policy, including a forthcoming article in the Washington University Law Review titled “Students, Police, and the School-to-Prison Pipeline.” He can be reached at nance@law.ufl.edu or 352-273-0992.

Sarah E. Redfield is the co-chair of the ABA’s Joint Task Force on Reversing the School-to-Prison Pipeline and Professor of Law Emerita at the University of New Hampshire. She can be reached at sarah.redfield@gmail.com or 207-752-1721. She is the author of several articles and books on education law and related topics. She and Professor Nance are experienced trainers for schools, juvenile justice participants, lawyers and judges on the topics of reversing the school-to-prison pipeline, implicit bias and debiasing.